"There is always a philosophy for lack of courage."—Albert Camus

Friday, July 15, 2016

Professor Tushnet's Remarkably Judge-centric Balkinzation Post

Over at Balkinization, Professor Mark Tushnet wrote:
"To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases. I think that's why the question of Justice Ginsburg's recusal in a hypothetical Trump v. Clinton case resonates. But I have a  bridge to sell you if you think that the Justices (any of them) were above politics in the real Bush v. Gore, or in many recent cases. (Neil Seigel has a nice piece forthcoming on Justice Alito as a movement conservative, for example.)
What's interesting is why people who acknowledge that that Justices have political views that do influence their legal decision-making nonetheless think that there's something important about maintaining the facade that they don't."

The Flap Over Justice Ginsburg's Interviews, Balkinization (July 12, 2016)

I think Tushnet is wrong about this, both historically (e.g., the impeachment of Supreme Court Justice Samuel Chase in 1804) and on policy grounds.

The reason many of us want federal judges to abstain from public partisan politics is not in order to promote fair (and the appearance of fair) decision-making by judges. Of course, judges have political views. We all know they do. It is unavoidable. 

So why does Canon 5 demand nonpartisanship by judges? Canon 5 protects wider society's decision-making from intervention by an unaccountable and unelected judiciary. It is that simple. When the rest of society chooses our (temporary) holders of public power via democratic means, we want to make that decision without being told what to do by people who are entirely (or nearly entirely) insulated from the consequences of a wrong decision. If taking political advice from a person with life tenure and constitutionally protected compensation makes sense, then 1689 and 1776 were mistakes. Unlike our Article III judges, even George III had to get his emoluments through regular parliamentary grants.

The question here is not how we can "Tak[e] the Constitution away from the [federal] Courts" (to use Tushnet's well-chosen title phrase), but whether as part of the regular competition for democratic power we should allow those to participate who cannot be held to account for their bad advice. That Professor Tushnet does not see all (or even any of) this is the most remarkable modern example of the judge-centric world-view which so infuses the American academic legal elite.

Seth

Twitter: https://twitter.com/SethBTillman (@SethBTillman) 

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